People v. Daniels

Weinstein, J.,

dissents and votes to affirm the order appealed from, with the following memorandum: The objective credible evidence forming the police predicate in this case was Sergeant Edmonds’ observation of the defendant after business hours in a deserted industrial area which was noted for prostitution. Sergeant Edmonds had observed the defendant a number of prior times in the course of their patrol that evening. At the time of their last observation, the defendant, who had a cast on his leg and was using crutches, was struggling across a street while carrying a large white plastic bag. The officers pulled alongside the defendant in an unmarked car and asked him what he was carrying. The testimony of the arresting officer with respect to the defendant’s forthright admission, to a total stranger, that the bag he was carrying contained "a hot typewriter” defies credibility. At no time prior to effecting the arrest did the police ask the defendant to identify himself or to explain the circumstances surrounding his presence in that locality at that time of day. *158Rather, Sergeant Edmonds, without identifying himself as a police officer, continued to inquire as to the make and origin of the machine in the defendant’s possession.

Significantly, there had been no report of a recent burglary in the area (cf. People v Rosario, 94 AD2d 329). Nor were the police involved in any ongoing investigation at the time they approached the defendant (cf. People v Pacheco, 107 AD2d 473, appeal dismissed 67 NY2d 631). While the area of the encounter was noted for prostitution, no evidence was presented regarding a high incidence of burglaries there (cf. People v Sweeney, 115 AD2d 502). Nor can it reasonably be contended that the defendant’s behavior was furtive or that he posed a threat or danger. On these facts, the defendant’s behavior did not reach the level of that kind of equivocal behavior which might justify the response taken by the police (see, People v Allen, 109 AD2d 24).

This court has held that "[i]nnocuous behavior is not sufficient to generate a reasonable suspicion that a crime is in the process of being committed or has been or is about to be committed, and, under such circumstances, an individual may not be seized, either constructively or physically, without the presence of some specific articulable facts warranting such seizure” (People v Richardson, 114 AD2d 473, 474-475; see also, People v Johnson, 64 NY2d 617). Even the limited level of inquiry sanctioned under the common-law right of inquiry must be founded upon a sufficiently credible and objective factual predicate (see, People v Carrasquillo, 54 NY2d 248, 253). Under circumstances where a police officer entertains no more than a mere hunch or a vague suspicion, virtually no interference with the citizen’s liberty is permissible (see, People v Finlayson, 76 AD2d 670, 675, lv denied 51 NY2d 1011, cert denied 450 US 931).

Assuming, arguendo, that some type of police action was warranted under the circumstances, the response chosen herein was inappropriate and not reasonably related in scope to the circumstances which rendered its initiation permissible (see, People v Cantor, 36 NY2d 106, 111). The police conduct here, where the sergeant almost immediately exited his vehicle in order to examine the defendant’s parcel, rosé above the level of a limited street inquiry to the level of a stop purportedly predicated upon reasonable suspicion. The fact that the defendant did not initially know that he was being approached by the police rather than a private citizen bears no significance. "The crucial factor was that depriving the defendant of his freedom of movement was effected by the police. *159Constitutional protections do not vanish merely because the victim of the unlawful governmental action fails to perceive the identity of the violator as a police officer” (see, People v Cantor, supra, p 112).